Can a law firm keep a departed, retired, or of-counsel lawyer's name in the firm name, or name non-shareholders in a PC?
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This page answers the general question as of 2004. Ezel answers yours: whether it's allowed on your facts, under the current Illinois Rules of Professional Conduct, with citations.
Plain-English summary
The opinion addresses two scenarios under Rule 7.5(d) (a lawyer may state or imply practice in a partnership or organization only when that is the fact) and Rule 7.1 (no false or misleading communication about a lawyer's services). In the first, a solo shareholder practices as "Smith, Jones & Doe, P.C." although Jones and Doe are not shareholders and share neither profits nor expenses. The Committee concludes the name is misleading: it suggests Jones and Doe are shareholders who, under Supreme Court Rules 721 and 722, would be jointly and severally liable for the firm's professional acts, when they are not. To comply with Rules 7.1 and 7.5(d), the firm must either drop the two names or make those lawyers shareholders or equity holders.
In the second scenario, a true partnership "Smith, Jones & Doe" faces Jones's departure. The Committee gives three answers. If Jones withdraws to join another firm, the firm may not keep his name, citing ISBA Opinion 865 and EC 211 (a withdrawing partner who continues to practice should be omitted to avoid misleading the public). If Jones withdraws to retire, the firm may keep the name where, per ISBA Opinion 709, the firm is a bona fide successor, use is authorized by law or contract, and the public is not misled, with reasonable steps such as noting his years of practice. If Jones becomes "of counsel," the firm may keep the name if it takes appropriate measures, such as showing his "of counsel" status on stationery; the opinion quotes ISBA Opinion 373 on the customary meaning of "of counsel."
Currency note
This opinion was issued in 2004, before Illinois adopted its current Rules of Professional Conduct effective January 1, 2010. The Illinois Rules cited here use the pre-2010 numbering. Subsequent rule amendments or later opinions may have changed the analysis. Verify against current rules before relying on any specific rule cited here.
In practice
Under the Illinois rules as they stood at the time, the opinion holds that a firm name must reflect the actual relationships among the named lawyers: naming non-shareholders in a P.C. and keeping a departed-but-still-practicing partner's name both mislead the public and violate Rules 7.1 and 7.5(d). The Committee identifies whether the name accurately reflects who bears partnership or shareholder responsibility as the operative factor, and treats retired-partner and of-counsel names as permissible only with measures that disclose the lawyer's true status.
Common questions
Q: Can a professional corporation use a name listing lawyers who are not shareholders?
A: No. The opinion concludes a name like "Smith, Jones & Doe, P.C." misleads the public about who is a shareholder and jointly liable, violating Rules 7.1 and 7.5(d), unless the named lawyers are made shareholders or equity holders.
Q: Can a firm keep a partner's name after the partner leaves for another firm?
A: No. The opinion concludes that keeping the name of a partner who withdraws to join another firm violates Rules 7.1 and 7.5(d) and that the name should be removed to avoid misleading the public.
Q: Can a firm keep the name of a partner who retired from practice?
A: Yes, with conditions. The opinion follows ISBA Opinion 709: the firm must be a bona fide successor, the use must be authorized by law or contract, and the firm must take reasonable steps so the public is not misled, such as noting the retired lawyer's years of practice.
Q: Can a firm keep the name of a lawyer who becomes "of counsel"?
A: Yes, if the firm takes appropriate measures to avoid misleading the public, such as indicating the lawyer's "of counsel" status on the firm's stationery.
Background and rules framework
The opinion interprets Illinois Rule 7.5 (firm names and letterheads, corresponding to Model Rule 7.5) and Rule 7.1 (communications concerning a lawyer's services, corresponding to Model Rule 7.1), read against Illinois Supreme Court Rules 721 and 722 on professional corporations and shareholder liability. The analysis turns on whether the firm name accurately communicates the named lawyers' actual relationship to the firm.
Citations and references
Rules of Professional Conduct:
- Model Rule 7.5 / Illinois Rule 7.5(d) (firm names; implying partnership only when it is the fact)
- Model Rule 7.1 / Illinois Rule 7.1 (false or misleading communications)
Other authorities:
- Illinois Supreme Court Rules 721, 722 (professional service corporations; shareholder liability)
- ABA Formal Opinion 318 (continued use of a former partner's name)
Other opinions cited:
- ISBA Advisory Opinions 373, 709, 865 (of counsel; retired-partner names; withdrawing-partner names)
See also
Source
- Landing page: https://www.isba.org/ethics/opinions/0302
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